Perverse migration bill shreds the rule of law

If passed, The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill would effectively enshrine in law the mistreatment of asylum seekers and refugees who flee to our country to escape persecution, torture and death.

The legislation is the perverse creation of a Government prepared to tear up the rule of law for its own political ends. It bestows an unprecedented level of power on the immigration minister to make life and death decisions about individual refugee cases. It creates a regime where the chance of sending people back to a situation of grave danger, or even death, is a real possibility.

It denies permanent protection to those found to be refugees, simply because of their mode of arrival to this country. Even babies born on Australian soil to parents who arrived by boat will be denied protection, rendered stateless and detained offshore until being “resettled” in squalor and risk of attack on Nauru. We should rightly ask, if the government is prepared to be so cruel and give itself this much unchecked power over refugees, who’s next?

The bill narrows the definition of a refugee. This makes it easier to send more people back to harm, rather than offering them protection. This is a particularly insidious step which will render obsolete decades of legal precedent and stack the odds against refugees. For example, if it’s considered that a refugee can simply “modify their behaviour” to avoid persecution or harm at home, they’ll be sent back. Would you expect the inspirational Nobel Peace Prize winner Malala Yousafzai, who fights for girls’ right to education in the face of Taliban opposition, to “modify her behaviour” and simply retreat indoors?

Under this bill, refugees will be disadvantaged by the very consequences of their life-threatening situation. For example, their case may be knocked back because they have false or no travel documents. This is inherently unfair. People fleeing for their lives don’t have time to get their paperwork in order and are often forced to travel on false documents to escape.

Would we have expected people fleeing Nazi Germany to obtain travel documents from Hitler? Would we punish them for using a friend’s passport to clear the border and escape the concentration camps?

Not only are these measures unfair, they are unnecessary. The current Migration Act already contains a robust legal process for determining whether someone is owed protection from harm. We require people to tell their story, repeatedly, consistently, with evidence, and within the confines of the law. We judge their character, undertake security checks and review their health. It is incredibly difficult to pass this process unless you are anything other than a refugee.

This bill effectively dismantles this robust process for people arriving by boat, creating a parallel system under which life or death decisions will be made via a brief, cursory assessment. Known as “fast-track”, decisions may be made within two weeks of arrival, with people having to present their case under intense pressure and with no legal assistance or understanding of our system. It will undoubtedly see people returned to harm and persecution.

We borrowed this process from the UK, where it has already been ruled unlawful by its High Court. This does not concern our government however; it is more interested in avoiding our country’s laws altogether. People receiving a negative decision through the fast-track process will be at the mercy of the minister to decide if their case is deserving of review. Having a minister – particularly one with such a fixed agenda – make decisions about individuals flies in the face of procedural fairness.

In its determination to send people back at all costs, the government also wants to remove consideration of whether someone is at risk of torture when seeking to return them home. It is astonishing that the government wants to deem torture and our non-refoulement obligations irrelevant when removing someone from Australia. It is essentially a guarantee of returning people to face serious harm or death.

As well as circumventing Australian law, the bill also seeks to put the government above international maritime law, so it can send people on boats back to the country they’re fleeing from, without any court oversight. The bill further puts us at odds with the international community by denying people who come by boat permanent protection, indefinitely.

The reintroduction of temporary protection visas (TPVs) means that refugees have to prove and re-prove they are refugees. Australia has tried this approach before, at considerable emotional and mental cost to desperate people forced onto temporary visas, who were left in limbo, unable to reunite with their family. The harm this caused is so well documented it’s almost become its own field of mental health. TPVs break people who managed to survive torture.

It is in the interest of the Australian community to have people settled quickly, so they may heal from their trauma, gain work or undertake study and get on with their lives. Some 95 per cent of people on TPVs the first time around ended up with permanent protection. There is no reason to believe this statistic would be any different now. In fact, situations of conflict are more protracted than ever before, making peoples’ need for permanent protection even more likely.

Prime Minister Tony Abbott and Immigration Minister Scott Morrison have work to do to get this bill through the Senate in December as they plan. It appears that in their negotiations with Clive Palmer, they were far from honest about the scope and consequences of the bill and his support for it is now shaky.

Other Senators and MPs have also expressed concerns about the bill, including crossbench Senators, who will ultimately decide its fate. This bill not only seeks to tear up the rule of law, it serves to undermine our proud history as a multicultural nation, inspiring the world with our diversity and harmony.

It feeds fear to the electorate, which the opposition feels obliged to support, in a context of a beat-up of Olympian proportions. The numbers of refugees heading for Australia are trivial compared to those travelling to many European countries. They don’t overreact. We do.

There are moments in history which are turning points. Now is such a time. Australia can stand up and protect the rule of law or become an international pariah, living isolated at the end of the world, forever in fear of others.

Malcolm Fraser, is a former prime minister of Australia 1975-1983. Dr Barry Jones, is a former minister for science in the Hawke government 1983-1990.